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Ward Edwards, Inc. v. The Devlin Group, Inc.

United States District Court, M.D. Florida, Jacksonville Division

November 13, 2019

Ward Edwards, Inc., Plaintiff,
v.
The Devlin Group, Inc., Defendant.

          ORDER

          Patricia D. Barksdale United States Magistrate Judge

         Before the Court is a motion by Ward Edwards, Inc.-referred to in this order as “the plaintiff”-to initiate proceedings supplementary under Federal Rule of Civil Procedure 69[1] and section 56.29 of the Florida Statutes, to implead 40 people and entities who were not parties to the underlying federal action into the proceedings supplementary, and to freeze assets of one or more of the non-parties. See Docs. 78 (notice), 78-1 (motion), 78-2-78-26 (exhibits), 92 (reply).

         Some but not all of those sought-to-be impleaded have responded in opposition to the motion. See Docs. 81 (response by 25 people and entities-referred to in this order as the “primary respondents”[2]), 86 (supplement to the response), 89 (response by St. Mark's Pond Property, LLC-referred to in this order as “SMPP”), 94 (sur-reply by the primary respondents). Unclear from the record is whether all of the 40 people or entities sought-to-be impleaded received notice of the motion.

         Background

         The background of the matter is in the Court's order dated September 18, 2018, and, in the interest of judicial economy, is not fully repeated here. See Doc. 76.

         Suffice it to say that, twelve years ago, in 2007, the plaintiff obtained a consent judgment for $340, 361.63 plus post-judgment interest[3] against The Devlin Group, Inc.-referred to in this order as “the defendant”-in the United States District Court for the Southern District of Georgia in Ward Edwards, Inc. v. The Devlin Group, Inc., 2:07-cv-66-LGW-RSB (S.D. Ga.), based on claims for unpaid professional services. See Doc. 1.

         A month later, the plaintiff, through previous counsel, filed in this Court a “Certification of Judgment for Registration in Another District, ”[4] and began discovery in aid of execution. See Ward Edwards, Inc. v. The Devlin Group, Inc., No. 3:07-mc-53-J-33JRK (M.D. Fla.). The last entry on that docket is an order from more than a decade ago, entered in 2008, denying a motion to quash or modify a subpoena duces tecum and directing non-party Gatehouse Capital Corporation to comply with the subpoena. See Doc. 44 in No. 3:07-mc-53.

         Three years later, in 2011, involuntary petitions for bankruptcy under chapter 7 were commenced against the defendant and another entity, Devlin Group Properties, LLC. See In re The Devlin Group, Inc., No. 3:11-bk-1498-JAF (M.D. Fla. Bankr.); In re Devlin Group Properties, LLC, No. 3:11-bk-1499-JAF (M.D. Fla. Bankr.). In the bankruptcy case involving the defendant, the plaintiff was among dozens of people and entities listed by Wallace R. Devlin, Jr. (the defendant's “Director”) in a schedule of creditors holding unsecured nonpriority claims. See Doc. 71 in 3:11-bk-1498. In 2013, the bankruptcy cases ended with orders dismissing the cases. See Doc. 78 in 3:11-bk-1498; Doc. 76 in 3:11-bk-1499.

         Three years later, in late 2016 or early 2017, the plaintiff, through new counsel, sent subpoenas to 174 entities and 52 people on behalf of the United States District Court for the Southern District of Georgia, subsequently withdrew the subpoenas as improper, and separately filed in four divisions of this Court, including here, a “Certificate of Judgment for Registration in Another District.” See Ward Edwards, Inc. v. Devlin Group, Inc., 3:16-mc-60-J-32PDB (the current matter); Ward Edwards, Inc. v. Devlin Group, Inc., 8:16-mc-146-T-35AAS; Ward Edwards, Inc. v. Devlin Group, Inc., 6:17-mc-9-Orl-40KRS; Ward Edwards, Inc. v. Devlin Group, Inc., 2:16-mc-30-FtM-UA-CM; see also Docs. 20, 20-1 in 2:07-cv-66 (S.D. Ga.).

         Discovery proceeded only here. Following disputes and attempts at resolutions, in 2018, the Court denied the plaintiff's motion to compel discovery and granted in part a motion by 23 entities to quash subpoenas issued by the plaintiff. Doc. 76. The Court ordered those entities to respond to the plaintiff's subpoenas, as limited, and directed the parties to meet and confer about a deposition of Devlin. Doc. 76 at 24. He had agreed to sit not only for one deposition but also for a follow-up deposition after discovery of any evidence as a result of any testimony in the original deposition. Doc. 81 at 2.

         The entities responded to the subpoenas by explaining they had reviewed their respective records and possessed no responsive documents. Doc. 78-1 at 11-12 (citing Doc. 78-24). The plaintiff neither filed additional motions to compel nor deposed Devlin, and its counsel currently represents it still is “without a scintilla of knowledge as to the ultimate disposition of” most of the defendant's assets. Doc. 78-1 at 12.

         Motion and Responses

         Instead, earlier this year, the plaintiff filed the current motion (titled, “Plaintiff's Motion for Proceedings Supplementary and Impleader of Third Parties and Request for Preliminary Injunction”) together with more than 450 pages of exhibits. Docs. 78, 78-1-78-26.

         Based apparently on internet research, the plaintiff contends the defendant, Devlin, and Devlin's father created a “web of entities.” Doc. 78-1 at 3. In the motion, the plaintiff seeks an order authorizing the commencement of proceedings supplementary under Rule 69 and section 56.29. Doc. 78-1 at 27. In the motion, the plaintiff seeks impleader of Devlin, four other people, and 35 entities because they assertedly “may be in possession of [the defendant's] assets.”[5] Doc. 78-1 at 1-2, 27- 28; Doc. 92 at 2 (quoted). In the motion, the plaintiff seeks permission to conduct “comprehensive” discovery into the businesses and financial interests of the 40 people and entities and to require them to “appear before this Court for an evidentiary hearing concerning the issue of fraudulent transfer and alter ego and satisfaction of the Consent Judgment.” Doc. 78-1 at 28. And in the motion, although not in the “wherefore” clause, the plaintiff seeks “a freeze order preventing the further transfer of assets out of any account held by [the defendant] and alter egos and a freeze order prohibiting [Devlin] from transferring assets and any of equity in the impleaded parties.” Doc. 78-1 at 26 (internal capitalization omitted).

         The primary respondents contend the plaintiff has caused them to “incur substantial legal costs to limit the scope of the overbroad discovery requests and to respond to multiple court filings” by the plaintiff. Doc. 81 at 2. They complain that instead of proceeding with available discovery, such as Devlin's deposition, the plaintiff “aggressively” uses previously criticized tactics and “sweeping improper filings” under an already rejected legal theory. Doc. 81 at 2-3. They contend the plaintiff's provision of hundreds of pages of documents to 40 people and entities is “reprehensible, ” adding that the “use of this Court to make a document dump has further injured [them] and increased the cost of responding to these irresponsible and vexatious actions” of the plaintiff and its counsel. Doc. 81 at 3. They observe that the plaintiff “again makes allegations without any factual or legal support.” Doc. 81 at 4. They argue the plaintiff's “unsubstantiated and ersatz assumptions should not be condoned nor permitted.” Doc. 81 at 5. They contend:

These current costs and pleadings could have been avoided if [the plaintiff] and its counsel had merely taken the under-oath deposition long before the case was closed in December 2018. Instead, [the plaintiff] again filed redundant pleadings that further demeans legitimate interests by asserting false claims. The filings demonstrate that leaving [the plaintiff] unrestrained, will continue to subvert the court process. The continued filings seem intended to force [the primary respondents] to pay moneys owed by a dissolved entity. [The plaintiff's] actions have been taken regardless of the costs to [the primary respondents] or the Court. This continued harassment and improper use of the judicial system is dilatory and vexatious.

Doc. 81 at 5.

         The primary respondents observe the purpose of impleader is to summon into court non-parties who possess “specific identifiable property” and provide them due process. Doc. 81 at 5. They continue that the motion is a “callous and intentional misuse” of impleader insofar as the plaintiff seeks to use it to obtain damages against non-parties under a piercing-the-corporate-veil theory. Doc. 81 at 5. They argue the plaintiff fails to comply with section 56.29 because the plaintiff has not filed the affidavit required by section 56.29(1) and has not described the property it contends should be applied to satisfy the judgment as required by section 56.29(2). They argue the plaintiff fails to satisfy its burden of showing preliminary injunctive relief is warranted. Doc. 81 at 7. They state:

Although [the plaintiff's counsel] did not contact [the primary respondents'] counsel pursuant to Rule 3.01 (g) the local rules of the Middle District, the undersigned counsel certifies that he contacted [the plaintiff's] counsel last week by phone and by letter to discuss withdrawal of the Motion and request counsel to contact the service list persons or entities. [The primary respondents] requested [the plaintiff's] counsel to request the service list entities or person destroy all documents sent to ...

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